United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA United States District Judge
by counsel, Lorene Smith ("Plaintiff") instituted
this action pursuant to Title XVI of the Social Security Act
("the Act"), seeking review of the final decision
of the Acting Commissioner of Social Security ("the
Commissioner") denying her application for Supplemental
Security Income ("SSI"). This Court has
jurisdiction over the matter pursuant to 42 U.S.C.
§§ 405(g), 1383(c).
protectively filed an application for SSI on November 5,
2012, alleging disability beginning January 6, 1992; this
claim was denied initially on February 19, 2013. Plaintiff
requested a hearing, which was held before administrative law
judge Brian Kane (“the ALJ”) on September 12,
2014. (T.41-83). Plaintiff appeared with her attorney and
testified, as did impartial vocational expert Carol G.
McManus (“the VE”). The ALJ issued an unfavorable
decision on December 22, 2014. The Appeals Council denied
Plaintiff's request for review on March 24, 2016, making
the ALJ's decision the final decision of the
Commissioner. This timely action followed.
parties have cross-moved for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. The Court adopts and incorporates by reference
herein the undisputed and comprehensive factual summaries
contained in the parties' briefs. The record will be
discussed in more detail below as necessary to the resolution
of this appeal. For the reasons that follow, the
Commissioner's decision is reversed, and the matter is
remanded for further administrative proceedings.
qualify for disability benefits under 42 U.S.C. §
423(d)(1)(A), a claimant must establish his “inability
to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment . .
. which has lasted or can be expected to last for a
continuous period of not less than twelve months.”
Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir. 2004).
The Commissioner's regulations set forth a five-step
sequential evaluation that the ALJ must follow when
evaluating disability claims. See 20 C.F.R.
§§ 404.1520, 416.920. In cases where there is
medical evidence of drug addiction or alcoholism, the ALJ is
required to perform a secondary analysis. Pursuant to 42
U.S.C. § 423(d)(2)(C), even if a claimant qualifies for
disability benefits under the five-step analysis, the
claimant “shall not be considered disabled . . . if
alcoholism or drug addiction would . . . be a contributing
factor material to the Commissioner's determination that
the individual is disabled”. 42 U.S.C. §
423(d)(2)(C); see also 20 C.F.R. §§
416.935(a), 404.1535(a). In determining whether a
claimant's alcohol or drug abuse is a
“material” factor, an ALJ is required to apply
the following process codified at 20 C.F.R. §§
(1) The key factor we will examine in determining whether
drug addiction or alcoholism is a contributing factor
material to the determination of disability is whether we
would still find you disabled if you stopped using drugs or
(2) In making this determination, we will evaluate which of
your current physical and mental limitations, upon which we
based our current disability determination, would remain if
you stopped using drugs or alcohol and then determine whether
any or all of your remaining limitations would be disabling.
(i) If we determine that your remaining limitations would not
be disabling, we will find that your drug addiction or
alcoholism is a contributing factor material to the
determination of disability.
(ii) If we determine that your remaining limitations are
disabling, you are disabled independent of your drug
addiction or alcoholism and we will find that your drug
addiction or alcoholism is not a contributing factor material
to the determination of disability.
20 C.F.R. §§ 416.935(b), 404.1535(b). “The
claimant bears the burden of proving that drug or alcohol
addiction was not a contributing factor material to the
disability determination.” Newsome v. Astrue,
817 F.Supp.2d 111, 126-27 (E.D.N.Y. 2011) (citing White
v. Comm'r of Soc. Sec., 302 F.Supp.2d 170, 173
(W.D.N.Y. 2004); Parra v. Astrue, 481 F.3d 742, 748
(9th Cir. 2007) (internal quotations omitted);
Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir.
2000); Doughty v. Apfel, 245 F.3d 1274, 1280 (11th
Cir. 2001); Brown v. Apfel, 192 F.3d 492, 498 (5th
contends that the ALJ's materiality finding was legally
erroneous and unsupported by substantial evidence because he
failed to first determine her physical impairments
with substance and alcohol abuse before assessing
which, if any, of her physical impairments would remain if
she stopped abusing drugs and alcohol. Plaintiff seeks remand
of the case for further administrative proceedings; she does
not seek reversal and calculation for payment of benefits. As